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Colonial Cases

Newspaper commentary China 1890s

North China Herald, 29 August, 1890
MR. CARLES' REPORT ON THE MIXED COURT.
29th Aug.
No one who knows anything about the records and working of the Mixed Court in Shanghai will be disposed to question for a moment the justice of the last sentence in Mr. Hughes' report on the Trade of Shanghai in 1889: "I may be allowed to add that Mr. Carles' own services during the many years of his assessorship materially contributed to increase the usefulness and enhance the reputation of the Court."
  There is probably no one who has sat of late years as an assessor in the Mixed Court who knows more about its working, has devoted more time and patience to his duties there, and is more competent to report on it, than Mr. Carles; and his appendix to Mr. Hughes' report will therefore be read with special interest.
  Beginning with the civil cases that came before the Court in 1889, Mr. Carles mentions the suit brought by the representatives of a Parsee merchant for the recovery of monies alleged to be owing to the estate of the merchant's father. The suit was involved in hopeless difficulties, and the doubts as to the Chinese law in such cases were only a part of them. After three days' hearing the case was withdrawn, to the relief, no doubt, of the judges, but to the loss of those students of Chinese law who might have gained much enlightenment, had the case been fought out.
  In these days when a share market hardly exists, the men who now gamble in shares used opium as the material of their speculation, until they found too often that they had to pay when they lost, and they did not receive when they won. We find from Mr. Carles' report that the nature of the Chinese opium speculator had not changed. Opium importers have been in the habit, it seems, of selling the drug on time, without fixing the time, with the result of finding "that many of the men, to whom these advantageous terms have been granted, were men of straw, who were only able to pay for the goods  if a profit was made on their resale to other Chinese."
  Mr. Carles gives some good advice to house-owners and mortgagees; that the former when letting houses should get a month's rent in advance, should never allow arrears to run on for more than three months, and when finally selling up their tenants, should get an order from the court authorizing the sale. Mortgagees are reminded that Chinese law, or custom, holds that the sale of mortgaged property or its foreclosure is satisfaction in full of the mortgage debt, unless a special stipulation to the contrary is incorporated in the deed.  Mr. Carles mentions the desirability of security chops being in a certain form prescribed by the Tsungli Yamen, and the habit the Chinese have of signing any name but their own to a deed, without necessarily intending any fraud; and we have all of us known cases in which the same Chinaman has been commonly known to different foreigners under entirely different names.
  These points noticed by Mr. Carles are very useful ones, and we come next to his remarks on the criminal business for the year, the total number of cases, many of them of course, of the most trivial nature, being over five thousand. At least two thousand cases came under Mr. Carles' notice as assessor, and we join him in admiring the tact exercised by the Chinese magistrate, Mr. Tsai, in his most difficult position. He has no code of law to guide him, for no foreign assessor would consent to the enforcement of the punishments provided by the Chinese penal code, and different assessors have different views as to the length of the terms of imprisonment that are to be substituted for the Chinese punishments. Many if the offences against the Municipal bye-laws for which culprits are brought before the Court are not punishable offences at all in the eyes of a Chinaman, and the magistrate therefore has no precedent for dealing with them. And if he is an obstinate man, who stands upon his country's ancient ways, he will constantly thwart instead of facilitating the efforts of the police. Mr. Tsai, however, has never failed, as far as we remember, to assist the police and the foreign assessors in their efforts to enforce the bye-laws, when the object and necessity have been explained to him. The usual and reasonable course adopted by him has been first to issue proclamations, bringing the matter in question to the notice of the Chinese public, and warning them that disregard of the terms of the proclamation will be punished, which is subsequently carried out by fine or imprisonment, according to the circumstances of the case.
  Mr. Carles goes on to point out that Mr. Tsai is so much superior in intelligence, ability, and good-will to the generality of the officers of his rank in China, and to most of his predecessors in the Maloo, that the necessity that the position should be filled by an officer of higher rank - which has been so often dealt with in previous reports - has not been felt during his incumbency. The Mixed Court magistrate has almost plenary jurisdiction over a Chinese population of some 150,000, and is decidedly over-worked, and should have a coadjutor to hear civil suits, to which both parties are Chinese, and to replace him when temporarily absent. It would give general satisfaction if the post were raised to the rank of a district magistracy, and Mr. Tsai promoted to its occupancy.
  Mr. Carles concludes his report by a repetition of his claim that the Municipal Council should establish a proper prison for Chinese; and Mr. Hughes adds copies of his letter of last March to the Council on the subject, and of the Chairman's reply.
  The recent escape of nearly all the prisoners who were supposed to be confined in the cells at Hongkew directs fresh attention to this claim, but we are still disposed to stand to the adverse opinions which we expressed on April 18th last, when this correspondence appeared in the Municipal minutes. This difference of opinion with Mr. Carles, however, does not lessen our respect for his report, and out thankfulness that he and his successors in the assessorship  have had and have as their colleague so good a magistrate as Mr.Tsai.

 

North China Herald, 18 March, 1892.
THE LATE MR. WAINEWRIGHT.
  On taking his sweat in the Supreme Court on Tuesday morning, Chief Justice Hannan, addressing a full Bar said:
  On this the first occasion of the Court sitting since the lamented death of Mr. Wainewright, I cannot refrain from saying a few words in reference to the terribly sad event.  It is no formal expression of sorrow that I give utterance to and those here as well as myself know that it is not.  To the Court he was ever of the greatest assistance.  He conducted every case in which he appeared with a rare ability and unfailing judgment. He was a man who must have made his mark wherever he had been, and as one watched him one almost regretted that he had not a larger field and greater affairs to deal with. His loss to the Court is great, to his clients it must be greater and to his personal friends, amongst whom I am proud to number myself, it is greatest of all. His kindness, his sympathy and his charity were universal; and I would only add that personally I have known no lawyer in the East whose intellect inspired me with greater admiration. The number who mourn him will probably be never known, for his charity was as unostentatious as it was wide; the extent of the sorrow we know not, but we know the depth of the feeling we have at the loss of our friend.
  Mr. H. S. Wilkinson (Crown Advocate) - My Lord, I hope you will allow me to say a few words on behalf of myself and the other members of the Bar. I have in my own name and in theirs, to thank your Lordship for the very appreciative way in which you have spoken of our departed colleague. It is impossible for us not to feel it. In the first place he was to have appeared here this morning, with me and for me. That brings his death home very strongly; and I have to say on behalf of the Bar that the words which your Lordship has uttered are felt and appreciated by them. Mr. Wainewright we have all had long to deal with. We have always found him what your Lordship has said. We have all had the greatest faith in his judgment, and if we ever thought for a moment that it was warped, we always found that it was in the cause of what he thought was just and right. He was a man of large heart and generous sympathies.  He was a friend of us all and we were all proud to call him our friend; and we, the Bar, share the universal regret of which your Lordship has so well spoken, at his death.

 

North China Herald, 21 April, 1893
FUNERAL OF MR. CHEN.
  On Wednesday afternoon the funeral of Mr. Chen, formerly Mixed Court Magistrate, who died in 7th March last, took place with all the ceremony which such an occasion is supposed by the native mind to demand. He held the post at the Mixed Court for twenty years, up to1883, the day of his resignation being also the anniversary of his reception of Sir George Balfour in 1843, so that his intercourse with foreigners had then lasted for exactly forty years to a day.

 

North China Herald, 10 November, 1893
MR. PLAYFAIR ON THE MIXED COURT AT SHANGHAI.
10th Nov.
IT is customary to conclude the annual Report of the British Consul to the Foreign Office on the Trade of Shanghai with a separate memorandum on the working of the Mixed Court during the year. Mr. Jamieson's Report on the Trade of 1892 concludes accordingly with a report on the Mixed Court by Mr. Playfair, who commences by pointing out that he was under the disadvantage of being personally acquainted with the working of the Court during the December quarter only. "I am able, however," he adds, "to compare its present conditions with those existing seven years ago, during my tenure of assessor-ship in 1886, and I find a gratifying decrease in the civil cases set down for hearing, and a similar falling-off on the criminal side, as far, at least, as these concern the British assessor."
  The decrease in civil suits Mr. Playfair attributes to the greater tendency among native defendants to settle with the foreign plaintiff without the formality of a hearing. It is satisfactory to know that it is now the native defendants who come to the conclusion that it is better to settle up than to face the Court; there was a time when it was the foreign plaintiffs who used to let their claims go by the board, because they despaired of getting a decision from the Mixed Court, or if they got a decision of having it put in force.
  That there is a falling-off on the criminal side too, may fairly be attributed to the superiority of the police under the present regime.  Mr. Playfair goes on to remark that "in cases which eventually come on for trial, it is becoming more and more customary for the Chinese defendant to call in the assistance of European counsel, and some of the resident lawyers have an extensive practice among the natives."  It might be added that in important cases the foreign plaintiff, too, sometimes entrusts his case to a lawyer, though it is more common for him to appear in person, and sometimes to considerably embarrass the foreign assessor by expecting him to act as his advocate with the native magistrate.
  "In most civil cases," Mr. Playfair continues, "it is not infrequently an advantage to the Court to have the case presented to it by those skilled in such matters, even though the law by which the suit is to be decided is not that with which the counsel is most familiar. On the other hand, the European advocate is apt to arrange his defence on lines suggested by the procedure of his own national Courts, which is as often as not divergent from the system, such as it is, by which the Mixed Court is governed."
  There is another disadvantage in the employment of a European Advocate; that he is too apt to undervalue the  intelligence and the power of the native magistrate, and to address himself too exclusively, as is indeed natural, to convincing the foreign assessor, forgetting  that the foreign occupant of the Bench is only an assessor, and that the decision rests with the native magistrate, and that it may be prejudicial to his client if the native magistrate should, without reason, imagine himself to be less considered than his position justified.
  "A Treatise on Mixed Court Law," Mr. Playfair continues, "has yet to be written, and the subject is one which deserves to be taken up by some legal writer of sufficient experience." After all, however, Mixed Court law depends so much on the personalities of the magistrates and the assessors, that it is very early yet to write a treatise on it, as if it had begun to crystallize.  It is neither purely Chinese nor purely Western; it is more Western when the foreign assessor is able to assert himself; it is more Chinese when the magistrate has more of his own way."
  "It might perhaps be described as Chinese Statute Law modified to suit Western prejudices; and this is, no doubt, what it was hoped when the Mixed Court was founded that it would become. As an instance of the mixture which it is sometimes erroneously supposed is indicated in the title, Mixed Court." Mr. Playfair points out that "whereas by Chinese law a criminal cannot be indicted unless he either admits his guilt, or, in the face of continued obstinacy, is confronted  by absolutely overwhelming evidence, persons are frequently condemned at the Mixed Court on evidence which, though satisfactory from a European point of view, cannot be considered "overwhelming." The fact is, that the prisoner in a Chinese Court is too often made to confess his guilt by torture, which no foreign assessor will allow the magistrate to employ.
  Mr. Playfair concludes this part of his Report with a well-deserved tribute to Mr. Tsai, the present magistrate, who has occupied the bench since 1886. "I was assessor," he says, "at the time of his first appointment, and can testify to his singular honesty, ability, tact, courtesy, and friendliness going beyond mere courtesy, with which he has always discharged his somewhat difficult duties. Succeeding as he did seven years ago to predecessors under whom the working of the court had been by no means smooth, the contrast presented by his now long incumbency is very striking, and it is to be hoped that he will retain his present functions for many years to come." Mr. Tsai, however, has not earned this commendation from successive assessors by any truckling to foreigners or neglect of the rights of his own people; it is his habit of holding the balance with perfect fairness that has made him so respected, and his Court so much sought, that he really now has too much work for one man, and should be given an assistant.
  In his comments on the business of the Mixed Court during the past year, Mr. Playfair mentions the case of the foreigner who was sentenced to the cangue, owing to the gross neglect of his Consul, who we do not indicate more precisely, as we do not wish to add to his notoriety. Some very pertinent remarks are made on the scandal that follows from the habit of some Consuls of refusing to recognise their natives and leaving them to the jurisdiction of the Mixed Court, which cannot punish them adequately, without the whole foreign community being revolted. Mr. Playfair justly says that "it is invidious and highly objectionable that an officer of Her Majesty's Consular Service should be required to adjudicate in the case of persons of another nationality, when a Consul of that nationality resides on the spot. If the latter is willing to leave the administration of justice in the hands of the local authorities, the least to be expected of him is that he shall be present at the trial to give his sanction in person, and shall not delegate so unpleasant a responsibility to the officials of another country."  But it is useless to expect even this of a Consul who will leave his fellow-countrymen whose nationality is undoubted, to the jurisdiction of a Chinese tribunal.

 

Morning Bulletin (Rockhampton, Australia), 17 August 1895

The United States Consular Court at Shanghai has forbidden the carrying on in the "Model Settlement" of the lottery known as the Gold Bond Investment Company, a kind of Manila lottery.  The municipal council were the plaintiffs, and the case was practically undefended.

 

The Times, 8 June 1896

Obituary of Sir Edmund Hornby, Chief Judge to 1876.

 

North China Herald, 16 June, 1893
AN INTERNATIONAL MARINE COURT.
16th June.
A PROPOSITION is now before the Diplomatic body in Peking for the establishment of a Marine Court for the trial of cases connected with shipping in which vessels under the Chinese flag appear as defendants.
[Not transcribed.]
It does not need much argument then to show that the present condition of affairs is unsatisfactory; and it would not be very difficult to constitute such a Court as is required. The Court of Consuls, with a Chinese colleague, if the Chinese Government cared to instruct the Taotai to sit with them, and a foreigner in the Chinese service, the Commissioner of Customs or the Harbour Master as a nautical man, would constitute a Court that would probably enjoy the confidence of all parties, the only fault with it being that in the addition of two nautical assessors it would be a rather large bench.
  We could hardly, however, expect the Chinese to be satisfied with a single foreign judge as a rule; and it probable that if a Chinese Maritime Court is constituted, it will have to be an international one.
  The great thing, however, is for the diplomatic body to get the Tsungli Yamen to give their approval to the principle. Fortunately, there is little narrow-minded conceit about the Chinese, such as would make them unwilling to leave to foreign judges such admiralty questions as have only come up in China in recent years, and of which their own officers have no practical experience. The China Merchants S.N. Co. is itself under official control, but it readily agreed to leave the decision in the case of the Fushan's collision with the German steamer Peking to the arbitration of the Chief Justice of the British Supreme Court.

 

 

North China Herald, 12 January, 1894
SHANGHAI, FRIDAY, JAN. 19. 1894.
WHEN we first announced, now nearly three years ago, that the Foreign Office at home had decided to amalgamate here the offices of Chief Judge of the Supreme Court and Consul-General, we pointed out some of the inconveniences that would inevitably follow from this ill-considered step. We said that cases might occur in which the Consul-General would be asked for his advice on matters which might subsequently come before the Chief Judge for decision, and the fact that both offices were filled by the same person must make it rather awkward for him.
   The case of MAJOR v. JARDINE, MATHESON & CO., recently decided in the Supreme Court, is a crucial instance of the inconvenience attending the union in the same person of the two important offices of Consul and Judge.
  Mr. Major came to Court to establish his right to a piece of ground occupied by Jardine, Matheson & Co. but which belonged to him by virtue of a Consular title-deed granted by the Austro-Hungarian Consulate. In his examination Mr. Findlay, the agent of the plaintiffs, - both these gentlemen being British subjects, - was asked by his counsel: "What was your reason for not having this lot registered in the British Consulate?" and Mr. Findlay's reply was: "Simply from the impression I gathered here in the Land Office that they are espousing Jardine's case. It might have been right or it might have been wrong."
  Mr. James Scott, H.M.'s Vice-Consul in charge of the Land Office, was called as a witness by Mr. Hanson, the counsel for Messrs. Jardine, Matheson & Co., and the following question was put to him:
  "It is stated in Mr. Findlay's evidence that he did not go to the English Consulate to get a Consular title-deed, because he thought, rightly or wrongly, that the Land Office was espousing the defendant's case" - and thereupon the Chief Judge, Mr. Hannen, remarked, "I think Mr. Scott was not in Shanghai at the time, so he will not be able to tell you anything about that."
  In his judgment, Mr. Hannen remarked: "Now, the ordinary course for a British subject who has acquired land from a Chinese subject is for him to bring all the necessary documents to the Land Office, and ask them to obtain n what is commonly called the Taotai's deed. This course the plaintiffs' agent did not adopt, but for some reason, variously stated as the dilatoriness of the Land Registry office, or their bias in favour of Jardine, Matheson & Co., he went to the Austro-Hungarian Consulate."  Further on the Judge made a rather severe comment on this course, and it must be remembered while reading it that Mr. Findlay was merely the agent of Mr. Major, and that, as Mr. Hannen himself allowed, there is nothing to prevent a British subject here going to any Consulate he likes to get a title deed:-
  "I am not astonished that the defendants were annoyed at this proceeding; they thought - and the majority of people will think - that this was an underhand way of acquiring a title, although Mr. Findlay has said he saw nothing underhand in it. I cannot help thinking that Mr. Findlay went to the Austro-Hungarian Consulate, because at that Consulate nothing was known of Jardine, Matheson's claim, and he did not come to this Consulate because that claim was known, and Messrs. Jardine, Matheson's views, as well as the plaintiff's, would have been laid before the Taotai. "
  Here it would almost appear that it was the Consul-General, who is the chief over the Land Office as well as over every other department of the Consulate, who is speaking; and this follows what is virtually a defence of the land Office, Mr. Hannen having said:
  "It is only fair that I should point out that practically the whole of the land-renters whose land is registered at the Consulate have been so well satisfied with the gentlemen in charge of the Land Office, up to the autumn of 1892, that it was urged on Mr. O'Connor to allow either of the gentlemen who had been in charge to remain there as long as possible. This is a matter of common knowledge, for it was noticed at the time in the newspaper when Mr. O'Connor was passing through in 1892; but these gentlemen were in the opinion of the plaintiffs' agent, either too dilatory or too biased to carry through the transaction."
  What appears to have occurred was that when Messrs. Jardine, Matheson & Co. found out that Mr. Major as getting a title-deed for land  which they believed to be the foreshore of the land which they had bought from Mr. Major and to which therefore they had a claim, they asked the British Land Office to remind the Taotai that when they asked for a title-deed for the foreshore some time previously, they were told by the then Taotai that no title-deed would be granted for it either to a foreigner or a native, but that it would always be set apart as government property; and they were naturally anxious to prevent the grant to Mr. Major or "the Austrian subject named Vincenzinovich," in whose name the application was made to the Taotai by the Austro-Hungarian Consulate, of a title-deed which would override their claim.  When we say that in some of the passages of Mr. Hannen's judgment that we have quoted, the Consul-General seems to come in front of the Chief Justice, we do not for a moment suggest that this made any difference to the result of the case, which ended in the Chief Justice finding that Mr. Major is the legal owner of the land in dispute.  Nor do we express any opinion on the merits of the case.
  What we desire to point out is, that we have had a very prominent instance of the inconvenience of the union of the two offices in the same person. It was impossible for the Consul-General to hear his Land Office attacked as it virtually was by the plaintiff without saying something in its defence; though it is, of course, understood that it was not personally, but only officially, that Mr. Hannen was in any way concerned with the Land Office, and we do not imagine that anyone believes that the Land Office was biased in favour of Jardine, Matheson & Co. or against Mr. Major. In fact, with Mr. Findlay it was apparently not much more than an impression, for he said in his evidence that "it might have been right or it might have been wrong."  Mr. Findlay did, however, actually complain in 1892 to the acting Consul-General that the Land Office was espousing Messrs. Jardine, Matheson & Co.'s cause in the matter; and thus this case illustrates the inconvenience which we pointed out not three years ago must arise, if a matter were brought before the Consul-General, which would subsequently become the subject of a suit before the Chief Judge.
  If the Foreign Office at home is asked by and by, as we hope it will be, to revert to the former system of keeping distinct the offices of Chief Judge and Consul-General, it may say with truth that no practical harm has so far arisen from the amalgamation; but we may not always have Mr. Hannen or Mr. Jamieson in the joint office; and there is, as we see, a possibility of grave inconvenience in the union, which should be avoided.

 

Los Angeles Herald, 30 August 1896

... Jackson and Seymour were American citizens and as such were tried by the consular court, and after several months' imprisonment were discharged for lack of evidence implicating them in the crime.

 

North China Herald, 9 July,1897

THE BANK OF CHINA AND JAPAN AND ITS CHINESE SHAREHOLDERS.

8th July.

 IN the minutes published yesterday morning of the Committee meeting on Monday of the Shanghai General Chamber of Commerce, there appears a letter from Mr. S. L. Darby, the Acting Manager of the Bank of China and Japan, Ltd., bringing to the notice of the Chamber the recent decisions of Chinese Courts in the matter of calls due from native shareholders of the Bank, and especially inviting attention to the bearing of these decisions upon the general interests of the foreign community of Shanghai. The facts of the case are well known, but, nevertheless, Mr. Darby gives a brief sketch of them.

   The Bank has been suing in the Mixed Court two representative Chinese shareholders for the recovery of calls made to enable the Bank to pay its depositors.  "The persons proceeded against had signed the usual forms of Transfer, their names had been duly entered on the Register, and not only had all the conditions of legal liability been fully satisfied, but the defendants had, in addition, signed special agreements undertaking to pay calls on their shares, and also agreeing that all questions between them and the Bank should be decided in accordance with the law of England. Nevertheless, both the Magistrate of the Mixed Court and the Taotai of Shanghai declined to hear the cases."

   Mr. Darby goes on to mention that each of the Chinese against whom proceedings have been taken has signed one or more special agreements, in addition to the ordinary instrument of transfer which ought to be sufficiently binding. The Mixed Court Magistrate and the Taotai therefore means that Foreign Companies have no security for the performance of Chinese shareholders of the obligations incident to their positions.

   "The decision of the Taotai   .  .  .   can be ised a as a precedent for relieving Chinese of their liability, not only to the numerous Foreign Companies of which they are registered shareholders, but to private individuals under transactions relating to purchases of shares, such transactions being presumably tainted with the illegality which attaches to actual membership.

[Not transcribed.]

We hear a great deal of the perfect trustworthiness of the Chinese in commercial matters; a late manager here of the Hongkong and Shanghai Bank made a statement publicly once on the subject that has become classical; but the Taotai's decision upsets this altogether.

 

North China Herald, 17 September,1897

MISCELLANEOUS ARTICLES.

THE BENNERTZ CASE.

13th Sept.

ON Saturday morning the judgment of the Taotai Tsai Chiun upon the protracted enquiry into the claim by Messrs.  Bennertz & Co. against the Kiangnan Defence and Pay Department was made known, and in another part of this issue we publish a translation which we have had specially made. 

   The mode in which the decision reached the public is somewhat novel, for instead of the Court again assembling the Chinese text was circulated amongst the foreign and native newspapers. Such a course may be regarded as a due appreciation of the utility of the Press, but at the same time it seems a distinctly novel proceeding, in a case which has already furnished some surprising material for the student of Chinese jurisprudence. 

   From a comparatively early stage of the hearing, which began in the Queen of Heaven's Temple and concluded in the Canton Guild House, it was fairly evident that a solemn farce was being enacted, in which the British Chief Justice was not only subjected to rebuffs he would not have tolerated for a second in his own Court, but from which, as the long-drawn out evidence and mass of documents accumulated, no possible good could result.

   The judgment entirely bears out that suspicion, for it simply amounts to an adoption of the main arguments adduced by Mr. Drummond, for the defendants, with some illogical abuse, and curtly refuses all redress to the plaintiffs. It is of course impossible that the case can be allowed to rest where it is. The patience of the British authorities must have been severely strained for some time past, and we do not believe they will allow the claim of a British firm to be ignored, and then played with by a Chinese Court, as the one in question certainly seems to have been. Vigorous representations in the proper quarter will, we trust, soon put at their proper value the grotesque statements that have been made as to Chinese law and custom, which have simply served to obscure the main issue, and that is, whether petty Chinese officials are to be allowed to repudiate when they like contracts with British merchants, and commit acts approximating to piracy.

 

North China Herald, 6 June, 1898

THE MIXED COURT.

2nd June.

ISSUED this morning with the usual Minutes of the Municipal Council will be found a mass of correspondence and reports on the subject of the Mixed Court, which deserves serious attention. It will be a revelation to some of us, it is a disgrace to all of us, that there exists with its front in the principal road in the Foreign Settlement. Each day we pass daily in the pursuit of business or pleasure, a Chinese group of prisons in which the worst horrors are perpetuated, in which unfortunates, some of whom have never been charged, much less committed, are starved to death unless some friend comes to their assistance, which are, in fact, no better than the charnel-houses which globe-trotters are taken to see in the native cities of China; the only difference being that these horrors are perpetuated in Shanghai under the very noses of the Foreign Assessors and the Municipal Police. In less self-restrained societies, the perusal of these reports would send a mob of indignant citizens up the Maloo this morning, which would destroy the Mixed Court and send its official occupants flying into the adjacent alleys to hide themselves. Happy, we are much too civilised to take such a barbarous way of remedying an evil which we hope the Consuls will find a way to remedy promptly now that it has been exposed.

   The correspondence is opened by a very forcible letter from the late Chairman of the Council, Mr. A. R. Burklill, to the Senior Consul, De. Stuebel, drawing attention again to the fact that the Mixed Court runners had been making arrests in the Foreign Settlement without the cooperation of the Municipal Police, in direct contravention of local regulations; and that they had been supported in this course by the deputy magistrate sitting with the U.S. Consulate Assessor. Mr. Burklill says in his letter:

In this connection, the Council would further draw your attention to the fact that the present administration of the Mixed Court is, by common report, notoriously corrupt. The runners attached to that Court, amongst whom are a large number of unsalaried underlings, undoubtedly levy blackmail in the less reputable class of native residents; frequent complaints are also made to the police of cases where these men exact large suns under threats of summonses, and anonymous complaints have often been received; it is, however, almost impossible to obtain direct evidence in such cases, the victims preferring to pay what is asked rather than to run the risk of the heavier penalties which would follow from their appearing as witnesses. A statement most frequently made to the police, which appears to be thoroughly borne out by circumstantial evidence, is to the effect that:-

[1.] Prisoners convicted at the Mixed Court and sentenced to imprisonment are not infrequently released by the Magistrate before the expiry of their sentences, without the sanction of the assessor.

[2.] Cases are of frequent occurrence wherein persons for whose arrest no warrant has been issued are directed by runners to attend the Court at the Magistrate's request; upon their doing so, they are detrained in custody for indefinite periods and mulcted in large sums.

   Mr. Burklill asked that an official inspection of the Mixed Court Gaol should be made at an early date to ascertain whether the prisoners who were there were the prisoners who ought to be there; and that if the result was unsatisfactory, the "Sub-prefect" should in accordance with the Mixed Court Rules, be denounced and removed.

   On the 17th of March Dr. Stuebel replied to Mr. Burkill's letter. The first portion of his reply was stereotyped; no arrests should be made in the Settlement without the Senior Consul's seal and signature and the assistance of the Municipal Police; as to the Mixed Court, the Consular Body was investigating the matter. On the 23rdof April last Mr. Fearon, who had in the meantime become Chairman of the Council, brings forward to the Senior Consul the case of a man whom having been "cautioned and [?]>] dismissed," according to the British Assessor's endorsement on the charge-sheet, was found on the 7th of April to be still in prison, "having been detained there since the trial without further hearing." On the 18th of April, after the man had been nearly two months in prison since his supposed dismissal - these are Mixed Court methods, - the matter is brought to the notice of Mr. James Scott, the British Assessor, who erases the endorsement and enters a new ruling on the charge sheet. This case forms the subject of correspondence and memoranda that will be found given in full in another column, and that we do not propose to deal with now, merely giving the following weighty extract from Mr. Fearon's letter of the 23rd of April:

It appears to the Council that, for the better protection of native residents, it is essential that one of the first and most necessary reforms to be introduced into the administration of the Mixed Court is that no prisoner shall in any case be remanded for a period exceeding ten days without his case being again brought up for hearing.

   On the 29thof May the Council stir up the Senior Consul again, asking if anything has been done in reference to the Consul's letters of the 1st of March and the 23rd of April, and making the following pertinent remarks:

In this connection and in support of the Council's earlier representations on the subject, I have the honour to state that the Council is in possession of reliable information tending to show that the frequency with which cases of destitution come under the notice of the Police is due, in a great measure, to the fact that the Mixed Court magistrate has of recent years discontinued his official subscription to the Sinza Charitable Refuge for beggars, a subscription formerly provided from the Mixed Court fines. The Council would therefore suggest with laying too much stress upon this information, that, simultaneously with other necessary enquiries, an investigation should be made of the uses and purposes to which are devoted to the sums paid into the Court as fines, and that for the future an account of all such receipts should be kept by the Court, open to inspection by the Assessors.

   This elicits a reply from the Senior Consul which includes the statement that "a report is being prepared by the Assessors to the Mixed Court on its general administration and that this report will be forwarded to the Municipal Council as soon as it is ready."

   Meanwhile, on the 21st of May Mr. H. Parkes Wilkinson had the courage and the humanity to send in to the Council over his own signature a brief summary of the actual condition of the Mixed Court Prisons: "situated in the Nanking Road," the principal and, after the Bund, the most important thoroughfare in Shanghai, and within the boundaries of the Foreign Settlement." The account must be read, it cannot be summarised or condensed. As a result of it, the Council directed the Captain-Superintendent of Police to accompany Mr. Wilkinson in a visit of inspection to these Mixed Court Prisons and report thereon. It was, of course, a "surprise" visit; it would have been no use to the Council to have given the magistrate notice, so that he might put the place in order, and get a white-washing report; but it was in no sense a forcible inspection, though Messrs. Wilkinson and Pattisson were, we do not doubt, quite prepared to use force rather than be turned back. But they did not have to make up their minds to this, as on their arrival they gave notice to the magistrate, who did not appear. They were accompanied on their inspection by the runners, the head-gaoler escorting them round; and before leaving, they made it a point of asking if the magistrate wanted to see them or not, as they wished to have an official record made of the fact of their visit. The answer of the Secretary was, the magistrate says, Maskee," and he would not see the visitors.

   Captain Pattisson's report more than bears out everything contained in Mr. Wilkinson's. No person with the ordinary instincts of humanity, unless his perceptions have become blunted by being acquainted with the ways of Chinese prisons, can read it without a feeling of horror that such a place should exist within the Foreign Settlement and partly under the control of Foreign officials. Ask a Consul about it - not a newly-arrived one but a seasoned one - and he will day: "Oh! my dear fellow! All Chinese prisons are like that!" So they are, no doubt, but this is not exclusively a Chinese prison, and we are quite sure that the foreign community here, however much Consuls or Assessors may deprecate any interference with this crying scandal, will not tolerate its continuance. The Assessors at the Mixed Court are not to be specially blamed for this scandal. The Assessorship is only a part of their Consular work, and a very disagreeable part and no doubt they escape from the Court after the Sittings as soon as they possible can, and do not bother themselves about what goes on in the prisons. 

   It is the whole system that wants to be changed, and it will be found that this is one of the things that "they do much better in France," i.e. on the French side. The Judge should be a magistrate specially appointed, with a Chinese official as assessor, and the prisoners should be under the care of the police, or a separate staff controlled by the foreign judge. This would check the extortion and blackmailing that now go on, and that go on with the greater success because the yamen in which they are practised was established by foreigners, and is under foreign protection. We do not wish to repeat what we write recently in two articles on the subject of the Mixed Court; those articles are well illustrated by the correspondence and reports published this morning, and we trust that the Consular Body will show such a serious determination to undertake the necessary reforms to this standing insult to Foreign Justice and Humanity, that it will not be necessary to publish exposure further.

[See also 'The Mixed Court," North China Herald, 16 June,1898.]

 

The Times, 27 September, 1898
THE FAR EAST.
[Extract]
  The question involves certain other considerations which may be taken into account at the same time. It was borne in upon the community 30 years ago that the municipal council by which the settlements are so admirably administered had no body to be kicked - that is to say, that it had no corporate capacity in which it could sue or be sued. It was agreed, accordingly, to set up a Court of Consuls. But that entailed another change; it accentuated the principle of cosmopolitanism;  and the conduct of negotiations with the Chinese authorities respecting municipal affairs was allowed to pass  out of the hands of the British and United States Consuls, who had previously represented it, into those of the doyen of the Consular body.
  There are 14 Consuls now at Shanghai, and it seems a little absurd that Belgian or Portuguese representatives should, by virtue of seniority, come to carry on the relations of what is, after all, an Anglo-American Settlement in which British and American interests enormously preponderate.  The position became absurd when the French Consul-General claimed - as he has actually twice done, on this very plea of seniority - to preside over the affairs of the Anglo-American Settlement while excluding interference in his own. That is pushing cosmopolitanism rather too far; and a return to the principle that the British or American Consul-General - whichever happens to be senior - should preside over matters of municipal concern has been proposed.

 

Singapore Free Press, 17 March 1899
FRICTION AT SHANGHAI.
 The Consuls at Shanghai have declined to continue negotiations with the Taotai unless he agrees to the boundaries proposed by the Consular body.

 

The Times, 11 September 1899

THE SHANGHAI FOREIGN SETTLEMENT AND MIXED COURTS.

The background and history.

 

The Times, 28 October, 1899
NEWS IN BRIEF.
CHINA.
(THROUGH REUTER'S AGENCY.)
Shanghai, Oct. 27.
  The Court of Consuls met today and agreed again to address the Diplomatic Body in Peking with a view to the ratification of the extension of the foreign settlement.

 

Published by Centre for Comparative Law, History and Governance at Macquarie Law School